New Detainee Rights Weighed in Plans to Close Guantánamo

Hundreds of terrorism suspects have been held for years without charge at Guantánamo.Credit
Todd Heisler/The New York Times

WASHINGTON, Oct. 31 — Administration officials are considering granting Guantánamo detainees substantially greater rights as part of an effort to close the detention center and possibly move much of its population to the United States, according to officials involved in the discussions.

One proposal that is being widely discussed in the administration would overhaul the procedure for determining whether detainees are properly held by granting them legal representation at detention hearings and by giving federal judges, not military officers, the power to decide whether suspects should be held.

Although the Bush administration has long defended the legal protections afforded detainees at Guantánamo against strenuous criticism, some officials now say that moving them to American soil would require giving them enhanced protections.

“If you were to bring them to the United States, there is a recognition that for policy reasons you would need even more robust procedures than those currently at Guantánamo,” one senior official involved in the discussions said, speaking on the condition of anonymity because no decisions have been made.

The administration has insisted for more than five years that a legal pillar of the war on terror is that the military alone has the power to decide which foreign terrorism suspects should be held and for how long, and backing away from that would be a sharp change of course.

Yet some officials say that enhancing detainees’ rights could also help the administration strategically, by undercutting a case brought by suspects at Guantánamo that is now before the Supreme Court, which could wind up winning them even more power to challenge their detention.

Under current procedures at Guantánamo, military officers decide whether detainees are properly held as enemy combatants, and the suspects are not permitted lawyers in the detention hearings, known as Combatant Status Review Tribunals.

Facing international criticism for holding hundreds of men without charge for years, officials from President Bush on down have said they would like to close Guantánamo. In recent interviews, officials said the discussion of detainee rights was not an acknowledgment that past policies were flawed, but rather was an indication that the administration was engaged in trying to assess the legal and practical consequences of shutting the detention center and moving detainees to the United States.

Even so, some officials are arguing against major policy shifts, and similar proposals have failed to gain steam within the administration in the past. In addition, any administration proposal would probably face intense scrutiny in Congress.

Before any detainees can be moved, officials have said that they would need to find or build a secure site in the United States and that they would need legislation allowing detainees deemed to be a threat to be held “until the end of hostilities” in the war on terror, even if they were not charged with war crimes. Under current proposals, scores of detainees might continue to be held indefinitely without facing criminal charges.

“These are dangerous men,” said Sandra L. Hodgkinson, the deputy assistant secretary of defense for detainee affairs. “There has to be an appropriate way of handling that.”

The administration has fought for years in court and in Congress against granting the detainees more rights. In the latest instance, the Supreme Court is to consider a case brought by Guantánamo detainees who are seeking to challenge their confinement in habeas corpus suits in federal court.

If the administration loses that case, it could give the detainees even more legal rights and create a precedent limiting the president’s and the military’s power. Lawyers inside and outside of government said a detailed proposal from the administration to give detainees fuller legal protections could convince the justices that they need not resolve the case, Boumediene v. Bush.

The discussions now under way in the administration show the complexities of the internal debate over whether to close Guantánamo, with some officials convinced they are facing unattractive choices: keeping the detention camp open and continuing to draw worldwide criticism or transferring the most dangerous detainees to the United States, where American courts would probably grant them increased legal protections.

Officials have said that to close Guantánamo, perhaps 200 of the 330 detainees there could be transferred to the United States. The remainder would be sent back to their home countries or to other countries, a painstaking process of reducing the number of detainees that has been going on for several years.

But the officials have said that about 200 of the detainees are considered too dangerous to repatriate. Of those, 80 or more, officials say, would be tried for war crimes in military commissions, with the remaining 120 or fewer held indefinitely because of military assertions that they are a threat to American security.

The officials said the current discussions about ways of closing Guantánamo had become more concrete in recent weeks, with Defense Secretary Robert M. Gates directing his advisers to come up with a proposal for closing the detention center.

Although Mr. Gates had urged the closing of Guantánamo shortly after he became defense secretary last December, he has said he quickly encountered resistance in the administration. But on Sept. 26 he told Congress in testimony that he had directed his deputies “to put together our own proposal inside the Department of Defense that we could then perhaps use as a basis for discussion” in the administration on how to close the center.

Some people outside the administration who are involved in Guantánamo issues said the political and international pressure on the detention center had now combined with concerns about the impending Supreme Court case in accelerating consideration of potential options.

Matthew Waxman, a former detainee affairs official at the Defense Department who now teaches at Columbia Law School, said the proposal to involve federal judges and detainees’ lawyers in hearings on detainees’ status had been discussed previously in the administration.

But, Mr. Waxman said, the proposal now “is gaining currency because you have greater recognition of the strategic costs of maintaining Guantánamo, combined with the legal risks of leaving it to the Supreme Court to decide what legal rights exist at Guantánamo.”

Under the current proposal, a specially created federal court with strict rules to protect classified information would hear detainee challenges to their detention. Judges who usually sit in regular federal courts would preside and would hear arguments from detainees’ lawyers.

Few details of the proposal are known, but such proceedings would be unlikely to give the federal judges the latitude they would have in the habeas corpus cases the detainees are seeking in the Supreme Court, lawyers said.

Other proposals to give detainees increased rights are also part of the discussions, people knowledgeable about the talks said. The administration could simply agree that detainees held in the United States were entitled to have their cases reviewed in habeas corpus cases, which would undercut several years of legal and Congressional arguments.

Another proposal would improve on the Pentagon’s current detention hearings, now conducted by officers, by adding military judges, for example, one person who has been briefed on the discussions said.

The discussions involve fierce competition between agencies and, at times, within agencies, which sometimes have sharply differing views on Guantánamo. Under Attorney General Alberto R. Gonzales, the Justice Department was often perceived in the administration as resisting proposals to close Guantánamo.

If Mr. Bush’s nominee, Michael B. Mukasey, is approved as attorney general, he has signaled he might shift the course of the department. In testimony at his confirmation hearings he said he would seek ideas “with the goal of closing it down because it’s hurting us,” and said Guantánamo had “given us a black eye.”

But he added that there was “no easy solution” to the question of what to do with current detainees.

Ms. Hodgkinson, the deputy assistant secretary of defense for detainee affairs, said there were many practical concerns with proposals to increase the legal rights of detainees if they were moved to the United States. She said Pentagon officials continued to insist that enemy combatants held outside the country could be held by the military until they were no longer a threat.

She said the proposal to provide lawyers to detainees for their detention hearings and have their cases heard by judges would need to be clearly limited to detainees held inside the United States. Military officials said this summer that they were holding 24,500 detainees in Iraq alone.

“How would we provide 25,000 lawyers in Iraq?” Ms. Hodgkinson said. “We couldn’t do it if we tried.”

Critics of the Bush administration have accused the government on several occasions of shifting legal tactics on detainee issues when it anticipated losses in court.

That perception could hurt the administration’s credibility with the Supreme Court justices if there is a new shift while the court is considering the case that is to be argued in December, said Barry Friedman, a professor at New York University School of Law who is an expert on the Supreme Court.

Still, Professor Friedman said, if the administration were to propose giving detainees new legal rights, the justices might conclude they did not need to answer the complicated question the case presents of defining the rights of terrorism suspects at Guantánamo.

The headline with the continuation of a front-page article on Sunday about the possibility of greater rights for detainees at the Guantánamo Bay naval base misstated one option the Bush administration is considering. It may close the detention center, not the base itself.

A version of this article appears in print on , on page A1 of the New York edition with the headline: New Detainee Rights Weighed In Plans to Close Guantánamo. Order Reprints|Today's Paper|Subscribe